SUPREME COURT.

Evening Star, Issue 3605, 11 September 1874, Page 2

SUPREME COURT.

IN BANCO. Thursday, SeptembiJe 10. (Before Hia Honor Justice Chapman.) demurrer. Isaacs awd Another v. Gadlaoher Argument of demurrer. Mr Stout appeared in support of the demurrer j Mr viacagsey, with him Mr Chapmau, in support of the pleadings. The plaintiffs are Woolf Istaos and R M. Marks, and the def ndaut John Gallagher. I he action was brough on a bill of exchange for LISO. It was > ried at the last sittings o> the Con, t, and tne jury gave a verdict for th' amount of the bill, 'ihe question now in dispute between the parties had been raised by a plea pleaded puis ddrrein co tumauce, in which it was alleged that Isaacs was lunatic at the time of action brought, but only sb found, after action brought, by inquisition, and the committee of bi« estate jfitd beito ajityttotoO. To this plea whft

both demurrer a»d replication. The demurrer urged that the plea was no defence to the action, and the replication asserted that the action had been continued with the consent of the committee of the estate. The real point for consideration was, does the lunacy of a plaintiff abate or discontinue an action? .

Mr Stoat submitted five grounds : 1. That the said plea disclosed no defence to this action. Under that head he submitted that he rules of that Court did not provide for a plea of the character involved The distinction between those rules and the Common Law Procedure Act was plain. This was a matter of misjoinder or nonjoinder. He cited ru ’es from 117 to 125 and i.he •■■6 th section of the Comm >n Law Practice and Procedure Act. It should not be by pica in abatement, but by n >tice. Iho plea, if it amounted to anything, war a plea in abatement, and was n© answer to the action. Th u next point was, 1 hat the matters alleged in the said plea do not affect the right of the said Kobert Michael Marks to maintain this action.” In respect to that around he cited Dicey’s treatise on the Parties to an Action, 108 ; Emery and another v. Maoklow, lO Bing., 23 ; Whitehead v. Hughes, 2 Dowl., P.C, 258. If the partnership still subsisted between Isaacs and Marks, this action wa*pr perly brought, and, to show that it did not subsist, he would cite several cases and text-books The third ground was, “That as the said plea does not show that the partnership between the said Robert Michael Marks and Woolf Isaacs has been dissolved, this action is maintainable by them as plaint ffs.” Under this head, the learned counsel cited the Lunatics Act, 1868 ; Waters v. Taylor. 2Vesey and Beame, 303 ; Saycr and Bennett, 1 Cox; Lindley on Partnership, 223 ; Dixon on Partnership, ; and Gow ou Partnership. 221 ; also several cases. The fourth ground was, “That it is not alleged in the said plea that Abigail Adelaide Isaacs therein mentioned, has become entitled, on behalf of the said Wolf Isaacs, to a shere of the partnership property of the firm of Isaacs and Marks, or to any ot the moneys sued for in th s action.” Mr Stout cited various sections of the Lunatic Act, 1868. The fifth ground followed from the previous one simply as a corollary. All the cases showed that Courts of Equity did not consider a partnership at an end merely by the lumcy of one of the partners. If Marks was entitled to bring the action at all, it must be in the names of the partners ; he could not bring it in the name of the committee, because the committee were not hitpartners. The action, therefore, was properly brought. Mr Macassey, on rising to address the Court in support of the pleadings, referred to the de dsion in the recent c ise - f Mordaunr v. Mordauut—that the House of Lords ba'* held that the action could be continued, not withstanding the lunacy of the r spondent Lady Mordmut; but the decision did not say in what form, and therefore that case did not strictly apply here; but the contention was somewhat similar. The learned counsel then argued, on authorities which he cited that lumcy, so far a* the purposei of thisaction were concerned, were equivalent to outlawry or death, and that the civil rights < f the lunatic ceased. The rules mentioned by hia learned friend could have no application and he therefore did not clearly see for what purpo.-e they were cited. If at the time of action brought the plaintiff had been found to be a lunatic, and a committee had then been appointed, the argument would have been intelligible, but here the report showed chat although the person in question was of unsound mind at the time of action brought, the inquisition was sometime afterwards Couching the affect, of the death of one o’ two persons, he cited Pell v. Llnnell, L R q>. 3, C. P., 441; also, Barnwell v. SutheraQd» 19 LJ , C. P., 290. There was m decision in common law exactly in point, and the rules of that Court did not provide for s suggestion of lunacy. Bacon’s Abridgement —tit. Abatement, 283—showed that the action bad abated by the lunacy. In Courtt of Equity the committee was the proper party to bring and defend suits. He cited Danger v. Stewart, 9 W. Rep., 226; Timp son v. London and North-Western Railway Company, W. Rep,, 538; Bryan v Twigg 3W. Rep., 42; Lyall v. Mercer, 1. S. and S.. 356 ; Brangan v. Gorges, 7, I. B. Reps , 225 ; Stanton v. Percival, 5, H. of 1,. 0 uses, 284 ; and re Marshall, 1, Curtis, 297 Also, Daniel’s C P., 1,390, 2nd vol., on the . subject of abatement. Ihe Court bad power, undi?r 3 and 4, William IY., to make th’ committee a party to the suit, after its commencement if either the plaintiff ©r the defeodant had become lunatic. An important pint was whether the Court would follow the equity or common law practice at Home Mr Stout was heard in reply. The question as to partnership had been loft untouched. The committee did not become a partner of Marks ; nor did the committee have the estate vested in it. In other partnership actions, in case ot death, insolvency, or marriage, a partnership, ipso facto, dissolved, except under an agreement to the contrary, and under special circumstances. Here the partnership was not dissolved, and could it be said that the partners could not sue ? His Honor said he was of opinion that upon this demurrer the judgment of the Court must be for the plaintiff.' He thought the plea—the after plea—disclosed no answer to the action ; and he founded his judgment entirely upon the principle laid down in all the hooks that lunacy, even after the inquisition, the finding the party lunatic, and also after the appointment of the committee, did not operate as a dissolution of the partnership, he could not see how it was possible to resist the corollary from that principle that the sane partner retained the ri ht to sue in his own name. But all he (the learned Judge) decided was that the action had been properly brought in the name of both parties His judgment was merely for the plaintiff, and upon the whole record, * The Court then adjourned.